Asset and Debt Distribution

During the course of a marriage property is accumulated as well as debt. The accumulation of marital property often begins the night that most couples get married; when friends and family give the couple gifts when attending their wedding. As the weeks, months, and years go by more and more property accumulates and finances become entangled. Debts are incurred and bank accounts and retirement accounts often become held by both parties. Often, the most difficult part of a divorce is what to do with the assets and debts that occur during a marriage. When carving up this collective debt/asset pie you need an experienced divorce lawyer on your side protecting your interests.

The general rule in both Kansas and Missouri is that the marital property and martial debts will be divided equally between the parties. That doesn't mean that all the assets will be liquidated and the proceeds distributed to both parties. Usually an agreement as to the assets can be created whereby the husband and the wife divide up the assets. The parties will come to an evaluation on the assets and divide them up accordingly.

Marital property are the assets accumulated during the marriage. However this is not as easy as it may seem. For example, even if one spouse brings property into the marriage solely owned by one party, the appreciation of that asset during the marriage becomes a marital asset. Secondly, it does not matter how property is titled. A vehicle that is purchased during the marriage will be marital property regardless of who the vehicle was titled to.

The first step in making a property division is to determine all of the assets and liabilities owned by the parties. The laws of Kansas make it clear that all property
belonging to either or both of the parties, irrespective of how it was acquired or how it is titled, is subject to division by the Court at the time of divorce.

The division of property in a divorce operates retrospectively to adjust the rights of the parties to property already accumulated and accrued, and property not yet received but likely to be received in a marital capacity. Maintenance, alternatively, is prospective in nature, and deals with future support of one or both of the parties. As such, maintenance and division of property are separate and distinct concepts. However, for various reasons that can be reviewed with your attorney, neither can be intelligently fixed by itself without giving appropriate consideration to the other. Simply stated, how assets or debts are divided in a divorce are almost inevitably going to impact whether either party receives spousal maintenance, and if so, to what extent.

Kansas law defines "Mutual Property" as follows:
(a) any and all property acquired during the marriage through the efforts of one or both of the parties, including retirement benefits accumulated during the marriage;
(b) the appreciation, rents, profits, dividends, interest, and earnings of any individual property during the marriage; and
(c) property rights accrued by either or both of the parties during the marriage and not yet received (unless received as a result of gift or inheritance).

"Individual Property," alternatively, is generally defined as follows:
(a) The entry value of property owned by either party prior to the marriage, and brought into the marriage; and/or
(b) The entry value of property received during the marriage by will or inheritance from the party’s family member. It is the relationship of the donor(s) to the party in the marriage and not the designated donee or intent at the time of the gift that will determine the non-marital/individual status of the property; and/or
(c) The entry value of the property received during the marriage by gift from someone other than the spouse or children of the parties.

Please note that there is no statutory definition of individual property, and that the above definition merely serves as a starting point to determine what property, if any, may be deemed individual and thus set aside to one party or the other without consequence. This is because as a general rule, individual property will not be divided, but restored to the party for or by whom it was acquired before consideration of the division of mutual property. The individual property should be restored at its entry value, however. It should also be stated that the length of the parties' relationship and/or marriage may impact the degree to which any individual property is restored. For example, if you have a marriage of 30(+) years, the Court may determine to much time has passed to justify restoring any individual property to either party, and instead look at all property as mutual property subject to division.

Although there is no "general rule" in any Kansas statute that states how property is typically divided in divorce, as a general rule of thumb, the Court's in Kansas typically divide the net worth in all mutual property equally between the parties. Which, often in practice, equates to a near 50/50 division of both assets and debts.

Although lacking a general rule, The Kansas State legislature has set forth a list of enumerated factors the courts are supposed to consider when making a fair, just and equitable division of the marital estate. These factors are as follows:
(a) The age of the parties;
(b) The duration of the marriage;
(c) The property owned by the parties
(d) The parties’ present and future earning capacities;
(e) The time, source and manner of acquisition of property;
(f) Family ties and obligations;
(g) The allowance of maintenance or lack thereof;
(h) Dissipation of assets, if applicable;
(i) The tax consequences of the property division upon the respective economic circumstances of the parties; and
(j) Such other factors as the court considers necessary to make a just and reasonable division of property
In light of the last factor enumerated above, courts typically retain broad ranging discretion as to what factors it can ultimately consider, and thus broad discretion regarding what the ultimate division of the marital estate may be.

Rightly or wrongly, the answer to the above question is clear in the State of Kansas: there should be no effect upon the division of property due to the greater dollar earnings of one party during the marriage.

In Kansas, there is a presumption that debt incurred after filing, or after the date the parties separate (whichever occurs first), should be paid by the party incurring that debt. However, if the debt is considered a necessary living expense, it may be reasonable to divide the debt between the parties equitably up through the date the case is finalizes. One factor in this determination should be whether temporary maintenance was paid or received. The parties should generally be expected to pay normal living expenses and payments from their regular incomes and not expend marital assets for living expenses in the pre-divorce period. Thus, if one party pays maintenance to the other, it is all the more unlikely that a Court would order the party who paid the maintenance to be responsible for the post-filing living expenses of the party who's receiving maintenance.

Contact Copley Roth and Davies for assistance in all of your family law matters. We are experienced in divorce, custody modification, child support, guardianship, and adoption.